Have you ever stepped in dog doo? Disgusting, isn’t it? If there’s nothing to lean against and no stick or water hose handy, you’re stuck with it-literally. If you’re wearing tennis shoes with one of those really nifty positraction soles, you have a stinky hitchhiker for a while.  

     Now imagine denying a claim and when it goes up to appeal and everyone at the BVA assumes a lot of things they shouldn’t. It sticks to their shoe and no matter how hard they try, they cannot divest themselves of it. Then something else sticks to the poo. Pretty soon you have a Bigfoot growing on you.

     Julia M. Garrett, the widow of a very brave soldier, applied for DIC based on her husband’s death. She rightfully believed he picked up his HCV in the service or, in the alternative, via a transfusion in a VAMC in 80. She was not an attorney and did not know to file a separate 38 USC § 1151 claim for SC, but she was a nurse. More about that later. She filed based on his passing from HCC. People with HCV get that quite frequently. VA looked up and blithely whistled past the graveyard and said no. Their theory was to ignore anything but what was filed for. VA does that a lot. The law has been around for a while and there is no ambiguity here. You help the  Vet with his /her claim wherever it leads.

In response, the Secretary argues that the examiner’s failure to note the blood transfusion is of no consequence because such evidence would only help to establish a claim for service connection for Mr. Garrett’s death under 38 U.S.C. § 1151.  See Sec. Br. at 13-14.  He avers that the Court does not have jurisdiction to consider this theory of entitlement because Ms. Garrett has never filed a claim for benefits under § 1151.  See id. VA “has a duty to ‘fully and sympathetically develop a veteran’s claim to its optimum.'” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)).  Accordingly, VA must “determine all potential claims raised by the evidence, applying all relevant laws and regulations.”  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 1998)  (internal  quotations  omitted); see also  38  U.S.C.  §  7104(a) (2011)  (Board is required to consider, and discuss in its decision, all potentially applicable provisions of law and regulation).   Garrett v. Shinseki (2011)

     I have often mentioned that VA examiners and others in their employ are inherently unschooled and lazy. I don’t blame them per se.  They come to convoluted decisions because computer programs lead them there. Witness how this gets the VA in deep trouble because they didn’t read the records closely enough to discover Mr. Hayman J. Garrett’s wife is a documented nurse and has “medical training”.  In their haste to push print and get this over, they go to their Adobe Acrobat button and select “no medical training therefore her lay testimony is worthless” in matters medical. That one alone will provoke a remand, but there are even more errors…

Here, the Board stated “there is no indication in the record that the appellant is a physician or other health care professional. Therefore, as a layperson, she is not competent to provide evidence that requires medical knowledge.” R. at 13.  However, the record in fact indicates that Ms. Garrett is a nurse.  See R.  at  202,  856.  Furthermore, contrary to the Secretary’s argument, it was not incumbent upon Ms. Garrett to provide proof of her medical knowledge and training to the Board; it was not until after the Board decision that she became aware that the Board found her statements inadequate.  See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (“[W]hen . . . the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence . . . on that question.”) (Garrett supra).

This was just a single judge decision, but it illustrates how these fellows run slipshod over the facts in their headlong rush to deny. If caught in a lie, simply complain loudly that it’s immaterial anyway. I seem to remember a former President using a variation on that defense.

     I certainly get no joy in finding these examples that cause such embarrassment to the Secretary. I do it for you to illustrate VA’s marked propensity to give you short shrift. Fortunately. Ms. Garrett will undoubtedly get her DIC. When VA commits this many errors and is unmasked, they generally do not deny again and risk the wrath of the Judges all over. No, this one’s in the bag for the transfusion if nothing else. Her being a nurse is just icing on the cake. How do you overlook the word Nurse when it’s associated with her in the records? Looks like a reckless speed reading ticket is in order or dyslexia to me. “Well, your Honor. In all honesty, we didn’t know Nurse Garrett was actually a “nurse” nurse. She sure didn’t speak up and mention it to us. That’s bogus. And as for this §1151 business, we’re getting blamed for not doing anything. That’s no fair. What? We have to file everything around here now for the claimants?” It’s almost too bad the Judge didn’t just reverse and remand for a rating. 

http://search.uscourts.cavc.gov/isysquery/1086ce8f-3301-4f71-94eb-690f8cd2edb9/41/doc/

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